JUDGMENT : Heard Mr. Shiv Kumar Singh, learned counsel for the petitioner and Mr. Ram Prakash Singh, learned A.P.P. for the State. 2. This application is directed against the judgment dated 15.04.2005 passed in Criminal Appeal No. 305 of 1986 by the learned 1st Additional Sessions Judge, Chaibasa whereby and where under the judgment dated 05.09.1996 passed by the learned S.D.J.M., Chakradharpur at Chaibasa in Chakradharpur P. S. Case No. 148 of 1981 corresponding to G. R. No. 1029 of 1981 and T. R. No. 503 of 1986. convicting the petitioner for the offence under Section 409 of I.P.C. and sentencing him to undergo R.I. for 3 years has been affirmed. 3. The prosecution story in brief is that the Executive Engineer, Mohan Mahato informed the police by his letter no. 853 dated 17.11.1981 that the arrear pay and allowances of the staff of the informant was received by the cashier (petitioner) before 28.10.1981, but the same has not been paid to the staffs in time on some pretext or other. It has also been alleged that the Executive Engineer received information from the treasury that cheque no. A/1 112061 was shown by the accused as uncashed, but was encashed long ago and the accused – petitioner has used the said money for his own use. 4. Based on the aforesaid allegations, G. R. No. 1029 of 1981 was instituted in which after investigation, charge-sheet was submitted under Section 409 of I.P.C. and after cognizance was taken, trial proceeded. 5. In course of trial 14 witnesses were examined by the prosecution. P.W. 1 – Arjun Prasad is a formal witness who proved the formal FIR, whereas P.W. 2, 8 & 11 were tendered by the prosecution. P.W. 1 – Arjun Prasad has stated he took charge as Accountant from Braj Nandan Singh and at the time of handing over and taking over of charge of cash and papers, he was present. P.W. 3 – Rajai Kant Sinha is a Works Inspector in the P.H.E.D. Department who has stated that the accused was a cashier under Mohan Mahto, the Executive Engineer. P.W. 4 – Harendra Prasad Singh was a Junior Engineer in the P.H.E.D. who has stated that he had come to know about defalcation of Rs. 80,000/-to Rs. 90,000/-. P.W. 3 – Rajai Kant Sinha is a Works Inspector in the P.H.E.D. Department who has stated that the accused was a cashier under Mohan Mahto, the Executive Engineer. P.W. 4 – Harendra Prasad Singh was a Junior Engineer in the P.H.E.D. who has stated that he had come to know about defalcation of Rs. 80,000/-to Rs. 90,000/-. So far as the evidences of P.W. 5 – Sumant Kumar, P.W. 6 – Banarasi Lal, P.W. 7 – John Boipai, P.W. 9 – Shiv Shankar Kedia, P.W. 10 – Abdul Jabbar are concerned, they have merely stated that the chest was broken open in their presence and inventory was prepared which was marked as Exhibit 1. The informant was examined as P.W. 12 who has stated that the petitioner had taken over charge on 31.03.1981 from Braj Nandan Singh and since 01.04.1981, he was working as a cashier. This witness has stated that the accused has kept both set of keys in his possession. He further stated that accused was handed over the cheque bearing no. A/1 112037 and another cheque no. A/1 112061 dated 15.06.1981 and 27.06.1981 respectively for an amount of Rs. 20,000/-and Rs. 35,000/-. He has further stated that the accused had encashed the cheque on 17.06.1981 and 06.07.1981. It has further been stated that the entries in the cash book has been proved and marked as Exhibit 3 series which is in the hand writing of the petitioner himself in which he had shown Rs. 35,000/-as uncashed in the month of July, August and September. P.W. 13 – Ramchandra Prasad was the Auditor who has submitted that he had audited account of P.H.E.D. department, Chakradharpur and has found the defalcation of Rs. 1,38,535.75/-. This witness had stated that he had found defalcation by this petitioner of Rs. 1,01,504.38/-. The audit report has been proved by him and which has been marked as Exhibit 10. 6. It has been stated by the learned counsel for the petitioner that the prosecution has miserably failed to prove its case beyond all reasonable doubt. He further submits that the I.O. of the case has not been examined which has caused prejudice to the defence. An alternative argument has been put forward to the effect that the petitioner is facing the rigors of prosecution case since the year 2005 and has also remained for some time in custody. He further submits that the I.O. of the case has not been examined which has caused prejudice to the defence. An alternative argument has been put forward to the effect that the petitioner is facing the rigors of prosecution case since the year 2005 and has also remained for some time in custody. It has thus been prayed that if this court is not inclined to interfere in the judgment of conviction, the period of sentence may suitably be modified considering the aforesaid fact. 7. Mr. Ram Prakash Singh, learned A.P.P. opposed the prayer. 8. It appears from the evidence of P.W. 12 and 13 as well as documentary evidence brought on record that the petitioner had defalcated an amount of Rs. 55,000/-which was meant for disbursement of salary to the staffs. P.W. 13 is the Auditor who has proved the audit report and has also stated about the defalcation committed by the petitioner. Thus the prosecution has able to prove the charge under Section 409 of I.P.C. which had rightly been held in appeal. 9. There being no reason to conclude otherwise with respect to the judgment of conviction passed by the learned trial court and affirmed by the learned appellate court, the same is hereby sustained. 10. However, with regard to the sentence which has been imposed upon the petitioner, it appears that the petitioner is facing the rigors of prosecution case since the year 2005 and had also remained for some time in custody out of the maximum sentence of 3 years of R.I. On consideration of the aforesaid facts, the period of sentence imposed upon the petitioner is modified to the period already undergone. 11. This application stands dismissed with the aforesaid modification in sentence.